Do Undocumented Persons Have Constitutional Rights?

Courts Have Ruled They Do

Do not let the fact that the term "undocumented persons" does not appear in the U.S. Constitution lead you to believe that its rights and freedoms do not apply to them. The courts have held otherwise.

Often described as a "living document," the Constitution has repeatedly been interpreted by the U.S. Supreme Court, federal appeals courts and Congress in order to address the ever-changing needs and demands of the people. While many argue that "We the People of the United States," refers only to legal citizens, the Supreme Court has consistently disagreed.

Yick Wo v. Hopkins (1886)

In Yick Wo v. Hopkins, a case involving the rights of Chinese immigrants, the Court ruled that the 14th Amendment's statement, "Nor shall any State deprive any person of life, liberty, or property without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws," applied to all persons "without regard to any differences of race, of color, or of nationality," and to "an alien, who has entered the country, and has become subject in all respects to its jurisdiction, and a part of its population, although alleged to be illegally here." (Kaoru Yamataya v. Fisher, 189 U.S. 86 (1903) )

Wong Wing v. U.S. (1896)

Citing Yick Wo v. Hopkins, the Court, in the case of Wong Wing v. US, further applied the citizenship-blind nature of the Constitution to the 5th and 6th amendments, stating ". . . it must be concluded that all persons within the territory of the United States are entitled to the protection guaranteed by those amendments, and that even aliens shall not be held to answer for a capital or other infamous crime, unless on a presentment or indictment of a grand jury, nor be deprived of life, liberty, or property without due process of law."

Plyler v. Doe (1982)

In Plyler v. Doe, the Supreme Court struck down a Texas law prohibiting enrollment of undocumented persons in public school. In its decision, the Court held, "The illegal aliens who are plaintiffs in these cases challenging the statute may claim the benefit of the Equal Protection Clause, which provides that no State shall 'deny to any person within its jurisdiction the equal protection of the laws.' Whatever his status under the immigration laws, an alien is a 'person' in any ordinary sense of that term… The undocumented status of these children vel non does not establish a sufficient rational basis for denying them benefits that the State affords other residents."

It's All About Equal Protection

When the Supreme Court decides cases dealing with First Amendment rights, it typically draws guidance from the 14th Amendment's principal of "equal protection under the law." In essence, the "equal protection" clause extends First Amendment protection to anyone and everyone covered by the 5th and 14th Amendments. Through its consistent rulings that the 5th and 14th Amendments apply equally to undocumented persons, they also enjoy First Amendment rights.

In rejecting the argument that the "equal" protections of the 14th Amendment are limited to U.S. citizens, the Supreme Court has referred to language used by the Congressional Committee that drafted the amendment:

"The last two clauses of the first section of the amendment disable a State from depriving not merely a citizen of the United States, but any person, whoever he may be, of life, liberty, or property without due process of law, or from denying to him the equal protection of the laws of the State. This abolishes all class legislation in the States and does away with the injustice of subjecting one caste of persons to a code not applicable to another. . . . It [the 14th Amendment] will, if adopted by the States, forever disable every one of them from passing laws trenching upon those fundamental rights and privileges which pertain to citizens of the United States, and to all persons who may happen to be within their jurisdiction."

While undocumented persons do not enjoy all of the rights granted to citizens by the Constitution, specifically the rights to vote or possess firearms, these rights can also be denied to U.S. citizens convicted of felonies. In final analysis, the courts have ruled that, while they are within the borders of the United States, undocumented persons are granted the same fundamental, undeniable constitutional rights granted to all Americans.

NO. This is a myth. If it were true, Arizona would not need to pass a new law. Arizona seeks to punish immigrants by applying criminal sanctions where none exist at federal level. It pursues policy of "attrition" to remove undocumented immigrants. See section about SB 1070 for more information on this point.

What Part of "Illegal" Do You Not Understand?

Answer: 1492.

First Nations International Court of Justice, Judge Tupac Enrique Acosta delivering Wakeup Call from the Nightmare of Manifest Destiny to AZ State Senator Russell Pearce.

The birthright citizenship granted by the 14th Amendment of the United States constitution is not justified by a piece of paper. Laws are a pact among the People to protect Civil Rights, Human Rights, Indigenous Rights, and Rights of Mother Earth.

The First Nations International Court of Justice holds Russell Pearce in contempt of court for failing to ask himself the real question of the 14th Amendment: Q: What part of 'illegal' don't you understand? A: 1492.

What do you think about state and national public opinion polls showing a vast majority of Americans supporting SB 1070?

It’s a challenge to explain how un-American the 1070 law is because of the right’s simplistic yet harmful message: “what part of ‘illegal’ don’t you understand?” and “illegal means illegal.” And most of the U.S. public is highly uninformed/under-informed through mainstream media outlets and disconnected with the experience of immigrants in this country. The rhetoric of the extreme Right, Tea Party and pundits like Glenn Beck and Bill O'reilly, has penetrated deeply into the pysche of many Americans and the criminalization of immigrants seems to have become the norm. History shows that many racist/discriminatory laws were also popular during their time but most Americans would reject those laws if introduced today.

The saying holds true that if you don't know history, you're bound to repeat the same mistakes...let us shed some light with a brief overview of racist laws in the United States. Click here to go to the Overview of Racist U.S. Laws page.

Why shouldn't undocumented/people who are here without papers people be prosecuted? Aren't they "law breakers?"

People without papers should be granted equal protection under the law and they should be granted a chance at citizenship like all other immigrants before them.

It would be radical departure of 100's of years of law if local police start to enforce federal immigration law.

Why should the U.S. treat undocumented immigrants any different than other countries?

The United States is quintessentially a nation of immigrants. The United States also is a country with a legacy of white supremacy. The United Statesd also pursues foreign policy that creates migration (either through war or economic imperialism) and therefore should have model immigration program for the world.

Aren't undocumented immigrants taking away the few jobs that are left in this country?

Undocumented immigrants fulfill a market need. They wouldn't be supplying their labor if there was no demand.

What about the high rates of crime being perpetrated by undocumented immigrants in this country?

Right wing accusations that immigrants are criminals is slander and creates racial profiling of anyone who appears to be immigrant.

On what grounds is NDLON suing the state of Arizona?

SB 1070 violates constitution for multiple reasons:

Federal government has exclusive authority to enforce immigration law.

What are your demands for immigration reform? Do you think there is support for it to happen?

We only win legalization once we defeat the criminalization of immigrants. Legalization and criminalization are mutually exclusive. We need to defeat Joe Arpaio's worldview to move to better place in Washington, D.C.

We want full political equality for those people living and working in the United States. We believe legalization is best way to achieve this.

What should communities do to protect themselves against racial profiling/SB 1070?

Follow Washington D.C.'s lead and pass laws prohibiting police/ICE collaboration (on May 4, D.C., Councilmembers Phil Mendelson, Jim Graham introduced the "Secure Communities Act of 2010" with the unanimous support of the Council, a ground breaking bill that will prohibit the DC Metropolitan Police from sharing arrest and booking information with Immigration and Customs Enforcement: http://www.commondreams.org/newswire/2010/05/04-3

What is the goal/purpose of having non-violent actions? Doesn't it hurt the overall goals of your campaign?

We are following the teachings and practices of the non-violent movements led by Cesar Chavez, Martin Luther King and Ghandi. We cannot comply with SB1070. We cannot obey laws against humanity.

Non-violent, non-compliance forces people to re-evaluate the stereotypes of immigrants and undocumented people and has an educational value that transforms people’s hearts and minds.

According to Cesar Chavez, “Non-violence in action is a very potent force and it can't be stopped. The people who are struggling have the complete say-so. No man-made law, no human ruler, no army can destroy this. There is no way it can be destroyed... And so, if we have the capacity to endure, if we have the patience, things will change.”

According to Martin Luther King, Jr., “In breaking the local laws, we are seeking to dignify the law and to affirm the real and positive meaning of the law of the land.”

Also from Martin Luther King, Jr.:

You may well ask: "Why direct action? Why sit-ins, marches and so forth? Isn't negotiation a better path?" You are quite right in calling for negotiation. Indeed, this is the very purpose of direct action. Nonviolent direct action seeks to create such a crisis and foster such a tension that a community which has constantly refused to negotiate is forced to confront the issue. It seeks so to dramatize the issue that it can no longer be ignored.

. . . We know through painful experience that freedom is never voluntarily given by the oppressor; it must be demanded by the oppressed. Frankly, I have yet to engage in a direct-action campaign that was "well timed" in the view of those who have not suffered unduly from the disease of segregation. For years now I have heard the word "Wait!" It rings in the ear of every Negro with piercing familiarity. This "Wait" has almost always meant "Never." We must come to see, with one of our distinguished jurists, that "justice too long delayed is justice denied."

How is your organization involved with the non-violent actions?

We believe 1070 is unjust and therefore we support people who peacefully refuse to comply.

What are you asking from Barack Obama?

To intervene in Arizona against SB 1070, for termination of 287(g) and “Secure Communities” programs which create the cancer represented by SB 1070 and for fair/human immigration reform without criminalization.

Why is militarization of the U.S./Mexico border a bad thing? Don't we need them for National Security?

Europe is tearing down walls and we are creating them. We are going in wrong direction. Majority of the undocumented are visa over stays. Troops have no law enforcement authority and do nothing to address this issue.

Are you aware of people leaving Arizona before SB 1070 goes into effect? Isn't that proof of its effectiveness?

We are working with community to resist 1070's goal of attrition (intent of "self-deportation).

Why should the average U.S. citizen care about SB 1070 or immigration reform? How does it affect them?

The United States is a nation of immigrants. Enforcement of laws affects everyone. Unscrupulous enforcement creates proven racial profiling. The Right Wing is worried about changing demographics and fear of a non-white majority.

Are you aware of racial profiling incidents?

Very much so. Elected officials, law enforcement, community leaders, and human rights organizations have publicly decried racial profiling incidents by the infamous Sheriff Joe Arpaio of Maricopa County. The Department of Justice is currently investigating Sheriff Joe Arpaio for accusations of racial profiling and civil rights violations of inmates in the Maricopa County Jail system.

Specific examples:

1997 Chandler, Arizona, Sweep
A joint operation of Chandler police and U.S. Border Patrol agents resulted in the arrests of 432 undocumented immigrants. But it also caught in its snare hundreds of legal immigrants and U.S. citizens of Hispanic descent.
A $35 million civil-rights lawsuit was filed, alleging violations of the constitutional rights of legal immigrants and citizens who were detained. The Chandler City Council paid $400,000 to settle the claims. (See SF Gate Article)

2001 Arizona DPS Case
Racial profiling again was the focus of a class-action lawsuit after 11 motorists accused state Department of Public Safety officers in northern Arizona of targeting minority drivers for traffic stops and searches. The suit was dismissed, appealed and ultimately settled, with the stipulation that DPS launch a data-collection campaign and agree to give the information to an outside team to evaluate. Study of the data drew conclusions about what happens to motorists after they are stopped. The data showed that officers were most likely to ask Hispanic drivers for consent to search their cars and trucks and least likely to find any drugs or other contraband in their vehicles, while White drivers were least likely to be the subject of consent searches and the most likely to carry contraband. (See Hispanic8.com Article)

April 4, 2010, Phoenix Mayor Letter to US Department of Justice
Phoenix Mayor Phil Gordon writes a letter to U.S. Attorney General Michael Mukasey, asking the Justice Department's civil-rights division and the FBI to probe Sheriff Joe Arpaio's "pattern and practice of conduct that includes discriminatory harassment, improper stops, searches and arrests."
Download Copy of Mayor Phil Gordon's Letter PDF

Racial Profiling Incidents:(Video) Truck Driver Forced to Show Birth Certificate Claims Racial-Profilinglink(Video) Viridiana Ramirez, cuffed and held for four hours, pleaded with MCSO that she was born in this country and could prove it link(Article) Julian Mora, and his son Julio, sue Sheriff Joe and other members of the MCSO for racial profiling linkFact Sheet: Sheriff Joe Arpaio’s Notorious Recordlink

How do you think Jan Brewer's popularity is being affected by her signing SB 1070?

She is popular with racists and enjoys support of people who don't know the whole story. Most people are uninformed and unaware of the reality of how SB 1070 will harm communities of color through harassment, racial profiling and wrongful detention. She will be humiliated by history books.

What is the purpose of Boycotting Arizona? Doesn't boycotting Arizona hurt the people who you are trying to help?

The Arizona Boycott is following calls of people WITHIN Arizona for a boycott. The Martin Luther King holiday experience proved effectiveness of boycott. A boycott is a way to target the state legislature and government in the only place they feel any pain: their pocketbook.

Why are you still protesting SB 1070? (if preliminary injunction and DOJ are suing the state of Arizona)

We won't stop until 1070 is stopped in its entirety and until immigrants are no longer used as scapegoats in Arizona and justification to subordinate non-whites in Arizona and across the US.